Intellectual Property

Can I Use the Photographs? (Part 1)


You hired the photographer to take pictures of your products, store, showroom or event. You would think that if you paid for the photographs and told the photographer what to shoot, you’d be entitled to use the images however you wanted. But you might be wrong.

Photographs are protected by copyright. Commissioning the creation of photographs and paying the photographer to take them does not give you ownership of the copyright in the photos. Under the copyright law in effect since 1978, the photographer owns the copyright in the photos. In the absence of a written agreement to the contrary, the party hiring the photographer acquires only the prints purchased and a non-exclusive right to use them for a particular purpose.

Photographers are often hired to take photographs, based on a cost estimate, without legal formality. The only writing that may change hands is the photographer’s invoice, which is duly paid, without examination of anything except the price. Pre-printed terms and conditions on the reverse side of the invoice commonly indicate the photographer retains any rights that are not expressly granted and may limit use of the photographs. If you acquire only the right to use the photographs in a catalogue, to cite just one example, you may not be able to use them in advertisements, or on your website, or on packaging, without further permission from the photographer.

And that’s not all. Not only can you not use the photos without the photographer’s consent, but also photos taken at your expense can be licensed by the photographer for use by others. Most professional photographers pursue additional income by licensing their photographic images for use in newspapers, magazines and books. Only a written assignment of copyright or exclusive rights can prevent the photographer from allowing others to use the photographs.

The consequences of not using a written contract to secure ownership of commissioned photographs can be especially severe when the relationship ends. Wal-Mart Stores and the Walton family learned this lesson when the local photographers’ studio that had photographed Wal-Mart and Walton events for over forty years closed. Their photo archives were put up for auction by the photographers’ heirs, along with the copyrights in the images. The Walton family and Wal-Mart Stores found themselves in litigation in an effort to obtain the photo archives for their museum, litigation that is still on-going.

Credit:  Helene M. Freeman

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For a recent article by New York Times reporters Sydney Ember and Rachel Abrams on brands and their use, sometimes without permission, of consumers’ own photographs posted on social media showcasing branded items, click here.

By Fashion Industry Law Blog

The Fashion Industry Law Blog is a publication of Phillips Nizer LLP, a mid-sized, full service law firm headquartered in New York City. To read about the Fashion Law Practice, please follow this link: